Judges Need to Lead the Charge for Sentencing Reform

Post Date: September 24, 2013

(Sacramento Bee op-ed by Ronald Tochterman, a former California Superior Court Judge and District Attorney) — Imagine you are a judge faced with a young robber who beat up a stranger and took his Rolex. You have ruled out probation because of the seriousness of the conduct.

The California Penal Code authorizes three possible sentences: two, three or five years in prison. The district attorney wants three years, the public defender wants two. You could justify either sentence: On the one hand, the defendant has previous convictions for similar conduct; on the other, the convictions occurred more than 10 years ago, and he’s been clean since, until now.

The District Attorney’s Office is unhappy with your recent sentencing decisions. If you impose the low term in this case, the D.A. may file “affidavits of prejudice” against you in all future decisions under California’s unique “peremptory challenge” statute, putting you out of business.

And a deputy district attorney may run against you when you come up for re-election next year, characterizing you as soft on crime. Your instinct for self-preservation kicks in; the robber goes off to prison for three years.

Prison overcrowding in California is a disgrace and will continue to be until someone does something bold. In 2009 the inmate population in our prisons was almost 200 percent of capacity. And aside from three gutsy federal judges, no one who mattered seemed to care enough to do more than fiddle around at the margins. Today, our prisons are still bulging at the seams, at 146 percent of capacity.

Gov. Jerry Brown and legislative leaders have ruled out “sentencing reform” (a euphemism for mitigating the harshness of present sentencing laws) and “early release” (releasing low-risk inmates on parole before their terms expire). I favor both, but I understand that neither will happen in the present climate.

I was part of the problem for 40-plus years: A career prosecutor when Brown appointed me to the bench in 1979, I was a hawk on crime. I still am. I have great sympathy for crime victims, and I believe that many of the people confined in our prisons are dangerous and incorrigible. But I also believe that many are not.

It’s not just the nonviolent drug offenders who don’t belong in prison. There are low-level felons of all kinds who should be on the streets. Those who rule out “early release” seem to assume the inmates’ sentences were arrived at in the first place by some magic formula, as if each crime and each statutory “factor in aggravation” has some universally agreed upon value. Read more